Does “Extremely Careless” Mean “Grossly Negligent?”
Apparently not.
There’s two angles to FBI Director James Comey’s press conference today regarding the investigation into Hillary Clinton’s email.
The first is legal. The salient finding was:
“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” (emphasis mine.)
Comey’s team couldn’t ignore the evidence that “classified information” was involved or that it was “mishandled,” but they could refrain from using the magic statutory words that would mandate a recommendation for prosecution, i.e., “gross negligence.” This was a matter of judgment where, on a sliding scale, “extremely careless” didn’t give rise to “grossly negligent.” It’s hard to see what would.
Intent isn’t an element of the crime(s), but never mind.
Comey acknowledged this matter required special treatment and consideration. He described thousands of hours required to piece together all the different private servers, administrators, software and devices she used. He detailed procedures in reviewing the classified materials. He noted not all emails were turned over and none were archived. He conceded probably not all were found. He acknowledged that despite no direct evidence emails fell into the hands of adversaries, the FBI wouldn’t expect to discover if they did.
Inconsistently, Comey noted, “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position…should have known that an unclassified system was no place for that conversation,” adding:
“None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”
Incongruously, he also concluded:
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case…[because]…[a]ll the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.” (emphasis added).
Perhaps not. Benjamin Wittes corroborates that he is unaware of any precedent for criminally charging anyone under such facts and circumstances in lawfare blog.
Comey concluded:
“To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions.”
Whether Hillary is held to even those low standards remains to be seen, but I wouldn’t hold my breath.
The fallout here is that every case being contemplated in the future will be citing Comey to stand for the proposition that being “extremely careless” isn’t as bad as “grossly negligent,” and therefore, a case shouldn’t be brought.
It’s noteworthy Comey didn’t comment on Hillary’s problems with Benghazi, the Clinton Foundation, or her questionable bank relationships, nor did he address whether she may have lied.
The second angle here is, of course, political. No doubt, Hillary will attempt to frame Comey’s press conference as exoneration, and Trump, extract damaging passages to support his proposition that Hillary is unfit for the presidency. Hillary will look foolish suggesting Trump doesn’t have the judgment to be president in light of Comey’s damning statements.
Since the federal court system apparently won’t, perhaps the court of public opinion will put the nail in Hillary’s political coffin.
Grim Reaper Bernie is waiting in the wings with a pitchfork full of delegates.
sua sponte 